Filed: May 05, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-2916 _ Verle E. Olson, also known as * Tony Olson, * * Appellant, * * v. * * Harold Clarke; Ben Nelson; * Appeal from the United States John Dahm; John Doe; J. Hansen, * District Court for the P.A.; Carolyn Greunke; Judy * District of Nebraska. Rimel; Department of * Corrections, of Nebraska; Dr. * (UNPUBLISHED) Osborne; Lincoln General * Hospital, * * Appellees. * _ Submitted: March 18, 1997 Filed: May 5, 1997 _ Before HANSEN, MORRI
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-2916 _ Verle E. Olson, also known as * Tony Olson, * * Appellant, * * v. * * Harold Clarke; Ben Nelson; * Appeal from the United States John Dahm; John Doe; J. Hansen, * District Court for the P.A.; Carolyn Greunke; Judy * District of Nebraska. Rimel; Department of * Corrections, of Nebraska; Dr. * (UNPUBLISHED) Osborne; Lincoln General * Hospital, * * Appellees. * _ Submitted: March 18, 1997 Filed: May 5, 1997 _ Before HANSEN, MORRIS..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2916
___________
Verle E. Olson, also known as *
Tony Olson, *
*
Appellant, *
*
v. *
*
Harold Clarke; Ben Nelson; * Appeal from the United States
John Dahm; John Doe; J. Hansen, * District Court for the
P.A.; Carolyn Greunke; Judy * District of Nebraska.
Rimel; Department of *
Corrections, of Nebraska; Dr. * (UNPUBLISHED)
Osborne; Lincoln General *
Hospital, *
*
Appellees. *
___________
Submitted: March 18, 1997
Filed: May 5, 1997
___________
Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Verle E. Olson appeals from the district court's order,
dismissing as frivolous claims against certain defendants and
dismissing sua sponte under Federal Rule of Civil Procedure
12(b)(6) claims against other defendants in this 42 U.S.C. § 1983
action alleging Eighth Amendment violations. We affirm in part and
reverse and remand in part.
Olson, a Nebraska prisoner, alleged in his November 1995
complaint filed in forma pauperis that he had had a hydrocelectomy
at the Lincoln General Hospital to remove a hydrocele (an abnormal
collection of fluid) on his testicle, and that he subsequently
complained of a painful lump at the surgical site, but prison
medical staff delayed and denied him medical treatment. Olson
named as defendants Governor Ben Nelson, Department of Corrections
Director Harold Clarke, Omaha Correctional Center (OCC) Warden John
Dahm, OCC medical director Osborne, nurses Judy Rimel and Carolyn
Greunke, physician assistant Jeff Hansen, Lincoln General Hospital,
and the Department of Corrections. He sought damages and
injunctive relief. In an amended complaint, Olson attached copies
of inmate interview requests responded to by Hansen and Rimel,
which documented his unsuccessful attempts to be examined by a
urologist, the delay in his receipt of treatment, and his
complaints of continuing pain. He additionally alleged that Hansen
examined him but failed to provide or delayed treatment, and that
while Rimel scheduled appointments for Olson to be examined by a
physician, his appointments were canceled, and several months
passed before he finally obtained an examination by a Dr. Cherry,
who also failed to provide treatment.
Without ordering service on defendants, the district court
dismissed as frivolous Olson's claims against Governor Nelson,
Director Clarke, and Lincoln General Hospital, concluding Olson
failed to allege how Nelson and Clarke were personally involved,
and failed to allege facts establishing that the hospital was a
state actor or conspired with state actors to violate his
constitutional rights. The district court dismissed Olson's action
as to the remaining defendants pursuant to Rule 12(b)(6) for
failure to state a claim.1 The district court acknowledged that
1
The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No.
104-134, § 804(a)(5), 110 Stat. 1321 (1996) (to be codified at 28
U.S.C. § 1915(e)(2)), now authorizes the district court to dismiss
a complaint filed in forma pauperis "at any time if the court
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Olson's injuries were serious, but suggested that Olson had failed
to allege sufficient facts to establish deliberate indifference by
any defendant. The court noted that Olson had been examined by
nurses and doctors after his surgery and that a disagreement with
the course or efficacy of treatment did not rise to the level of a
constitutional claim, nor did allegations of negligence state a
claim under section 1983.
We review de novo the dismissal of a case for failure to state
a claim; a complaint should not be dismissed unless it appears
beyond a doubt that the plaintiff cannot prove any set of facts in
support of the claim that would entitle the plaintiff to relief.
See Dicken v. Ashcroft, 972 F.2d 231, 233 (8th Cir. 1992). To
state a claim for an Eighth Amendment violation, Olson must allege
facts sufficient to support his claim that prison officials were
deliberately indifferent to his serious medical needs. See Estelle
v. Gamble,
429 U.S. 97, 104 (1976).
We conclude that the district court, which must assume Olson's
allegations are true, erred in dismissing claims against physician
assistant Hansen and nurse Rimel for failure to state a claim.
Olson's allegations as to these defendants, which include requests
for additional treatment following the discovery of a lump,
continued pain due to lack of treatment, a delay in treatment, and
a denial of a request for a referral to a specialist, are
sufficient to satisfy the deliberate indifference standard. See,
e.g., Ellis v. Butler, 890 F.2d 1001, 1004 (8th Cir. 1989) (per
curiam); Mandel v. Doe,
888 F.2d 783, 788 (11th Cir. 1989). We
conclude that the district court could not determine, without
improper speculation, that any delay in addressing Olson's concerns
was not due to deliberate indifference. See
Ellis, 890 F.2d at
1003-04. Further, although Olson was examined by a physician
assistant and, eventually, by a prison physician, he could be
determines that . . . the action . . . fails to state a claim on
which relief may be granted."
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entitled to relief if he can prove that the "course of treatment,
or lack thereof, so deviated from professional standards that it
amounted to deliberate indifference." Smith v. Jenkins, 919 F.2d
90, 93 (8th Cir. 1990).
We conclude, however, that the district court properly
dismissed as frivolous the claims against Clarke and Nelson, see
McDowell v. Jones, 990 F.2d 433, 435 (8th Cir. 1993) (holding that
supervisor liability under § 1983 requires proof that the
supervisor personally participated in or had direct responsibility
for the alleged violations), and the Lincoln General Hospital, see
Gentry v. City of Lee's Summit,
10 F.3d 1340, 1342 (8th Cir. 1993)
(holding that § 1983 liability requires a defendant to have acted
under color of state law). We also conclude the claims against the
Department of Corrections were properly dismissed. See Monell v.
Department of Social Servs.,
436 U.S. 658, 694-95 (1978) (holding
that municipal liability under § 1983 requires proof of an official
custom, policy, or practice that caused the alleged violations).
In addition, Olson failed to allege any facts supporting a claim
against nurse Greunke, Dr. Osborne, or Warden Dahm. We leave for
the district court to determine whether Olson may amend his
complaint to add Dr. Cherry as a defendant.
Accordingly, we affirm in part and reverse and remand in part
for further proceedings.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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